Wednesday, December 4, 2013

Legislature Should Remove Penn State Trustees and President

Sent on September 28 2013 by Bill Levinson, B.S. '78
To:  State Senator John Yudichak
State Representative Scott Conklin
cc: Penn State Board of Trustees and President by certified mail
Penn Staters for Responsible Stewardship
 Table of Contents
Executive Summary
November 9, 2011: "That Day"
January 2012: Trustees Reaffirm their Bad Judgment
July 2012: Trustees Frazier and Peetz Affirm the Freeh Report's Findings
NCAA Uses the BOT's Acceptance of Freeh's Findings as an Excuse for Sanctions
The Freeh Report's Deficiencies
Advice to Commit Libel or Slander
Contradictory recommendations
Freeh Can't Have It Both Ways
Freeh Speaks with Forked Tongue
2013: The BOT's Downward Spiral
March 2013: Kenneth Frazier's Meltdown
Yes, This Is a Mutiny

Executive Summary

The Pennsylvania State University is among the Commonwealth's crown jewels because, as the academic equal of any Ivy League institution, it plays a major role in the state's economy and educational system. PSU also has the dubious distinction of being the only university in the country whose Trustees and President are in the moral equivalent of a civil war with most of the alumni, as well as a large proportion of the students and faculty. The University is unlikely to attract any first-class candidate to replace Rodney Erickson while this situation prevails. The well-being of the University, and therefore the Commonwealth, requires wholesale intervention by the Legislature.

 A good first step would be the elimination of the Business and Industry Trustees, the self-perpetuating clique that is a clearly identifiable source of most of the past two years' problems, and is apparently accountable to nobody for its performance.[1] It can be argued credibly that the B&I faction, through its affirmation of the Freeh Report's findings of guilt, invited the NCAA to impose its sanctions on the University.

Rodney Erickson was, as I understand, a very good Provost. His problems began only when he accepted the Presidency from a very dysfunctional Board of Trustees (BOT), and escalated quickly to the point where he was booed off his own football field at halftime.[2] His problem is obviously that of any subordinate who has to serve a bad master who has thrown away his honor, which the BOT did on 11/9/2011. This does not change the fact that his service to that master has rendered him largely unable to lead the University. His successor will have to serve the same bad master in the absence of profound changes in Penn State's governance.

Now it is necessary to look at the specific reasons as to why Penn State cannot move forward, or heal, under its current governance. The BOT has created what General Carl von Clausewitz called polarity, or a win-lose situation, in which exactly one of the following statements can be true:

(1)                  Penn State knowingly and willfully harbored, facilitated, and enabled a child molester. Coach Joe Paterno, and three Penn State administrators, were parties to this cover-up. This entitles media loudmouths and others to call the University "Pedophile State" and "Sandusky U," and interviewers ask recent graduates about the Sandusky scandal instead of their job qualifications.
(2)                  The Freeh Group delivered such a shoddy work product that nobody should hire it to investigate even a parking ticket,[3] and the BOT failed to exercise due diligence to the extent that its members are not fit to be in responsible charge of the University.

The first conclusion is devastating for Penn State, and the second is devastating to the Trustees who made the decisions in question. This means that the credibility of the Trustees in question is in direct conflict to the well-being of the University, which renders them unable to exercise their best impartial judgment on the University's behalf. Now we need to examine the chronology of events that brought us to this situation.

November 9, 2011: "That Day"

Rudyard Kipling's "That Day" describes in unsparing detail a shameful rout in which British soldiers throw their weapons away, turn and run, and are then cut down like sheep from behind. This pretty much describes what happened when the BOT displayed obvious panic by calling an emergency meeting on 11/9, and then caving in to media pressure by firing President Spanier and Coach Paterno. This, in turn, admitted falsely on Penn State's behalf that the University had facilitated and enabled a child molester.

President Spanier's dismissal deserves special mention. Whomever this particular Board approaches with the offer of the Presidency has the right to know that he or she will have to report to the same people who fired the last President peremptorily, without due process, and without any pretense at a diligent investigation into the facts. He or she will have to report to one particular Business and Industry Trustee, Kenneth Frazier, who expressed his utter contempt for due process during the course of a racially-charged tirade this March. I do not believe that Penn State can, under the current circumstances, hire a first-class candidate who has the option of going somewhere else—or, quite frankly, deserves the services of such a person.

Nobody contends that the Trustees were bad people who set out to hurt Penn State that day. They were decent and well-meaning people who were caught in what Colonel Jeff Cooper calls Condition White: totally unprepared for trouble. Condition White is why four or five hijackers, each with a relatively puny weapon, could take over an airplane on 9/11 despite being outnumbered by the able-bodied passengers. The passengers were not expecting trouble, and the hijackers had a plan. The hijackers, therefore, followed Sun Tzu's advice to win a fight before it begins.

The Trustees were not, however, caught literally in Condition White like an unsuspecting robbery victim, or the passengers on 9/11. They had several hours between the time the emergency meeting was called, and the time it convened, to compose themselves, clear their heads, and think. They had time to realize that the information in front of them was incomplete, which Trustee Keith Eckel admitted openly.[4]

“He said the board had to act fast last week so the university could move forward, but now it has to take its time making sure it knows all the facts before making other changes.”

Eckel, therefore, does not even try to deny that the BOT rushed to judgment on the basis of incomplete and, as later proven, inaccurate information.[5] It is also noteworthy that Business and Industry Trustee John Surma played a major role in the decision to scapegoat Coach Paterno and, to a lesser degree, President Spanier. We will subsequently see the role that Business and Industry Trustees Frazier and Peetz played in opening the door to the NCAA sanctions.

The Board nonetheless went ahead and fired, in the most humiliating manner possible, one of the most respected persons not only in football but academia. What made Joe Paterno special was not merely football but, and more importantly, his emphasis on academics. He would bench a star player who was behind on his grades, no matter how badly he needed that player on the field. Paterno, in fact, played a major role in making Penn State a first-rate academic institution, and the jewel in the Commonwealth's crown. He was not merely a football coach, but the founder of a lot of what Penn State is today.

Anybody can be caught in Condition White. His or her character determines what he then does about it, assuming that he gets a second chance—which the Trustees did. Kipling's "Drums of the Fore and Aft" says of those who use a second chance honorably, "If they can be made to come again they are not pleasant men to meet; because they will not break twice." The Trustees had more than one chance to acquit themselves with honor, and regain the good will and support of the Penn State community, but chose instead to insist that wrong was right.

January 2012: Trustees Reaffirm their Bad Judgment

The Board knew within a few days of 11/9 that most of the Penn State community regarded it as Penn State's enemy, and every bit as much so as the media loudmouths who had demanded Coach Paterno's dismissal while they made up names like "Pedophile State " and "Sandusky U." The BOT could have regained the good will of the Penn State community by rescinding, and apologizing for, its bad decisions as it was repeatedly urged to do. Most people will forgive a mistake when the people who made it admit it, and try to set matters right.

The Board instead, however, alienated the Penn State community even further when it continued to insist that wrong was right. Trustees Anne Riley (subsequently voted out by the alumni at the first opportunity), Mark Dambly, Keith Eckel, and Peter Khoury held an interview in which they effectively told the alumni to go pound sand and, more to the point, insisted that the wrong they did on 11/9 was right.[6]

July 2012: Trustees Frazier and Peetz Affirm the Freeh Report's Findings

Business and Industry Trustee Kenneth Frazier played a major role in hiring Louis Freeh to investigate the events at Penn State, and Freeh announced his findings in a press conference on July 12 2012. Frazier then said "several hours" after the release of the Freeh Report, "Administrative leaders -- including at the time President Graham Spanier, Coach Joe Paterno, Athletic Director Tim Curley, and Senior Vice President Gary Schultz — failed to protect children when they had the opportunity and failed to provide adequate information to the board, he said."[7] It is difficult to imagine how Mr. Frazier could have read the entire report in several hours, assuming that he dropped out of the Board meeting to devote his entire attention to it.

My perception, whether right or wrong, is that Mr. Frazier effectively signed off on Freeh's inflammatory, deficient, and quite possibly defamatory findings of guilt without bothering to read the report. If he had done so, he would have noticed its internal inconsistencies, a few of which are enumerated below. In addition, "failed to provide adequate information to the board" is simply not true.[8] Mr. Frazier was truthful as far as he was personally concerned because he was not at the May 2011 meeting, but his fellow Trustees (as opposed to President Spanier, or Coach Paterno) who were did not bother to inform him about the briefing. His fellow Trustees, and not Spanier or Paterno, are why he was caught in Condition White in November 2011.

Business and Industry Trustee, and Board Chair, Karen Peetz also affirmed the Freeh Report as follows: "I think our reaction is that the clarity that's come out of the report would show that 61 years of excellent service that Joe gave to the university is now marred. And we have to step back and say, what does that mean?"[9]

Peetz, and Mark Dambly, then denied that Peetz and Frazier had affirmed Freeh's findings. As stated by Peetz in the November/ December 2012 Penn Stater (page 41, bottom): "We're not planning to make any statements about the guilt or innocence of any of the parties involved [in the Freeh Report]." Mr. Dambly said in September 2012, "The four people spoken about most in the report, we're certainly not going to take a position on their guilt or innocence," trustee Mark Dambly later told reporters. "They'll go through their process ... We're going to allow that process to play out in the courts."[10]

The same reference adds, "But Peetz said the board did not plan a detailed review of the report itself. She said such a review would take its course in upcoming trials or other legal actions, a comment that drew a couple chuckles from the crowd." The BOT in general, and Trustees Peetz and Frazier in particular, not only affirmed the report's findings of guilt without apparently bothering to review the report, but Ms. Peetz does not even acknowledge that there is a problem with this. Neither does Mr. Frazier, as will be shown below.

NCAA Uses the BOT's Acceptance of Freeh's Findings as an Excuse for Sanctions

As reported by NBC Sports, [11] the NCAA used the Freeh Report's conclusions, the same ones that Business and Industry Trustees Peetz and Frazier affirmed, as a basis for impositions of sanctions of highly questionable legitimacy. According to the NCAA's press release (emphasis is mine),

According to the NCAA conclusions and sanctions, the Freeh Report “presents an unprecedented failure of institutional integrity leading to a culture in which a football program was held in higher esteem than the values of the institution, the values of the NCAA, the values of higher education, and most disturbingly the values of human decency.”

Because Penn State accepted the Freeh Report factual findings, which the university itself commissioned, the NCAA determined traditional investigative proceedings would be redundant and unnecessary.

The BOT as a whole did not accept Freeh's findings and, as far as I know, no Trustee other than Kenneth Frazier and Karen Peetz made any public statement that did. This put the BOT as a whole, and these individuals in particular, in a position in which they now have to be "right" about the Freeh Report, even at Penn State's expense. The next section will show that this was a very bad decision.

The Freeh Report's Deficiencies

The BOT would have known all of the following had it bothered to read the Freeh Report in detail. It is noteworthy that Henry Ford exercised more diligence, although clearly not enough diligence, when he published anti-Semitic propaganda that he received from a Russian named Boris Brasol. Ford, unlike the Trustees, read what he had been given, but it was professionally designed to be internally consistent even though it was a vicious falsehood. This was how the world got The International Jew; The World's Foremost Problem. If Brasol's propaganda had been as internally inconsistent and self-contradictory as the Freeh Report, The International Jew would have never seen the light of day.

Advice to Commit Libel or Slander

Page 14 of the report says Paterno, Schultz, Spanier, and Curley decided to let Sandusky retire in 1999, "not as a suspected child predator, but as a valued member of the football legacy…" Freeh Sporkin & Sullivan, LLP therefore seem to suggest that Paterno, Schultz, Spanier, and/or Curley should have committed libel or slander by describing Sandusky as a suspected child predator.  Only in 2012 did we discover that Sandusky was a child predator but, as of 1999, the only thing that anybody knew was that a police and Department of Public Welfare investigation had exonerated him of anything remotely resembling that.

Page 5 of the press release also adds what seems to be Mr. Freeh's advice that Paterno should have committed legally actionable defamation (again in the context of what was known in 1998): "At the very least, Mr. Paterno could have alerted the entire football staff, in order to prevent Sandusky from bringing another child into the Lasch Building." When you go around hinting to other people that somebody is a child molester, and therefore a felon, you had better be right unless you want to land your employer, and yourself, in very serious trouble. As matters stand, by the way, Coach Paterno did not want any children whatsoever in the Lasch Building due to liability concerns, and Mr. Freeh admits this!

Contradictory recommendations

The Freeh Report condemns Paterno as shown for not trying to keep Second Mile children off campus, but it stipulates (page 51) that Paterno objected to the presence of Second Mile children on campus for any purpose whatsoever. "Is this [Sandusky's access to Penn State athletic facilities] for personal use or 2nd Mile kids? No to 2nd Mile. Liability problems."

The report adds (page 81) that University counsel (Cynthia Baldwin) said that the University could not legally revoke Sandusky's access to the athletic facilities because of his Emeritus status, and because he had not been convicted of a crime. Page 106 reiterates this. Page 107 adds that Baldwin said "his access could not be eliminated without the University being sued." The report therefore condemns Penn State's administrators for not doing something their attorney said could get them sued.

Freeh Can't Have It Both Ways

Page 4 of Mr. Freeh's press release[12] adds of the 2001 shower incident, "Further, they [Paterno, Spanier, Curley, and Schultz] exposed this child to additional harm by alerting Sandusky, who was the only one who knew the child’s identity, about what McQueary saw in the shower on the night of February 9, 2001." McQueary himself alerted Sandusky at the time of the incident: "I made the loud noise in an attempt to say, 'Someone’s here! Break it up!'"[13] Penn State's report of the incident to The Second Mile also alerted Sandusky. Does Mr. Freeh think Penn State should have "protected" the child by withholding this information from Second Mile? Wouldn't that have been a cover-up?

Freeh Speaks with Forked Tongue

According to,[14] Freeh wrote on page 53 of his report:

"The Special Investigative Counsel requested an interview with Paterno in December 2011. Through his counsel, Paterno expressed interest in participating but died before he could be interviewed."

At the July 12, 2012 press conference announcing his findings, Freeh said "We don't have the benefit of having spoken to Mr. Paterno, as I believe he intended to do …"

But in issuing his response to the Paterno family's critique of his report Sunday, Freeh said: "During the investigation, we contacted Mr. Paterno's attorney in an attempt to interview Mr. Paterno. Although Mr. Paterno was willing to speak with a news reporter and his biographer at that time, he elected not to speak with us."

Only one of these stories—the one Mr. Freeh told in his report and press release, or his response to the critique of his report—can be true. Did Freeh lie in his report and press release, or did he lie in his response to the critique of his report?

There are additional problems with the Freeh Report, as described in an excellent report by alumna Eileen Morgan, along with the assessment by the Paterno family's attorneys. Another glaring issue is Freeh's condemnation of Penn State's failure to act against Sandusky in 1998, after a police investigation emphatically cleared Sandusky of being a child predator. Had the BOT exercised even basic and rudimentary diligence by reading the report, it would have known these things, and would not have affirmed the findings of guilt that the NCAA used as an excuse for its questionable sanctions.

The Board instead put itself in roughly the position of Maish Rennick, the manager who bet against his own boxer in Requiem for a Heavyweight. When the BOT affirmed Freeh's conclusions, it bet its credibility and reputation on the guilt of Penn State Administrators, Coach Paterno, and the University as a whole, and therefore against the reputation and well-being of Penn State. No manager who bets against his own boxer, or coach who bets against his own team, can continue to serve effectively. I think this bad bet explains Kenneth Frazier's open display of temper, to the extent of using a racial diatribe, when alumnus Bill Cluck questioned the Freeh Report in March 2013.

2013: The BOT's Downward Spiral

The BOT staked everything it had, in terms of credibility, on Louis Freeh's workmanship. It forgot that others, including not only the Paterno family and Graham Spanier (who has apparently sued the Freeh Group for libel)[15] but also countless alumni, were not willing to accept Freeh's conclusions. They worked rapidly and effectively to expose the problems with the report, as shown in some detail above. This upset Kenneth Frazier, who wagered all his prestige and credibility as a Trustee on Freeh, and against Penn State.

March 2013: Kenneth Frazier's Meltdown

As reported by the Centre Daily Times (emphasis is mine),[16]

The fiery Frazier exploded with a verbal assault Thursday at a man running for a spot on the board who called into question the board’s use of the Freeh report and the report’s conclusions.

…“I believe that we are entitled to look at the words and contemporaneous emails and other documents that draw the conclusions that we need to draw as a university,” said Frazier, who oversaw the special task force and said they interviewed several law firms to investigate and then hired Louis Freeh’s.

“We are not subject to the criminal beyond-a-reasonable-doubt standard, and you’re a lawyer, so you can stop pretending that you think we are,” Frazier told Cluck.

“We can take employment actions, we can take corrective actions without any need to resort to the so-called due process, reasonable doubt standard, and I don’t care if they are acquitted. And you know the difference."

“If you cared about that, you are one of the few people in this country that looks like you [Caucasian] who actually believes the O.J. Simpson not guilty verdict was correct."

“The fact of the matter is, those documents say what they say, and no amount of hand-waving will ever change what those documents say.”

Frazier also told Cluck that attempts to rewrite history — presumably an implicit reference to the Paterno family’s report that sought to refute Louis Freeh’s findings — will damage the university.

It is crystal clear that we, as a board, cannot and should not reinvestigate the Freeh investigation,” Frazier said.

We must really ask whether, had a Caucasian Trustee said this to a Black alumnus, with "George Zimmerman" replacing "O.J. Simpson," he would still be a Trustee. I look like Bill Cluck, by the way, and I agreed with the Simpson verdict because of loss of chain of custody of a key piece of evidence (the Ford Bronco).

"Reinvestigate" is, meanwhile, the wrong word because the Board never vetted the Freeh investigation even once. It is, meanwhile, instructive to listen to this exchange on YouTube.[17] The stress in Mr. Frazier's voice is evident, and he is clearly not in control of his temper. Somebody who is not in control of his temper, and to the extent that he inserts a totally gratuitous reference to another person's skin color, is not in control of the situation. Frightened people who are not in control of a situation tend to exercise poor judgment of the nature shown.

The BOT's leaders then underscored their growing panic by attempting, and mostly without success, to intimidate the handful of Trustees who are attempting to redeem Penn State's reputation.

Yes, This Is a Mutiny

Even military officers, whose legitimate orders are backed by the Uniform Code of Military Justice, know better than to give an order that they do not know will be obeyed. If a ship captain has to ask his crew, "Is this a mutiny?" he had better know what he is going to do if the answer is "Yes."

"Mutiny," however, implies that somebody has the right to issue an order in the first place. The BOT's leaders have nothing that approaches remotely the authority of a military officer, or even a workplace supervisor, over other Trustees. They learned this the hard way when they tried to bully Adam Taliaferro, Alvin Clemens, Ryan McCombie, and Anthony Lubrano into withdrawing from the lawsuit against the NCAA. As reported by the Centre Daily Times,[18]

UNIVERSITY PARK — Penn State said Tuesday that trustees suing the NCAA are in conflict with the university’s position and interests, and that was the reason for giving the student trustee an ultimatum about withdrawing from the lawsuit.

A spokesman said the leaders of the board have “serious concerns” about Peter Khoury and other trustees, including Anthony Lubrano and Alvin Clemens, who’ve joined the Paterno family’s lawsuit to reverse the NCAA sanctions against Penn State. Board spokesman David La Torre said their action creates a conflict of interest spelled out in the university’s bylaws.

This is an insult to the intelligence of anybody who reads it. None of the plaintiffs has any financial stake in the outcome of the NCAA lawsuit, although its success would recover $60 million of Penn State's money (along with possible damage awards, again payable to the University). It would also restore the University's reputation. The plaintiffs are carrying out the fiduciary duty that the entire Board failed to do in 2012, when it acquiesced to the sanctions after it didn't bother to review the Freeh Report. The only conflict of interest that I can identify, and it is emphatically not financial, is the one between the credibility of the Board's leaders, and the well-being of Penn State as supported by the lawsuit.[19]

Although student Trustee Peter Khoury capitulated to the orders of the Board's leadership, Trustees Lubrano, Clemens, McCombie, and Taliaferro treated the same orders with the respect they deserved by ignoring them. This taught the Board's leaders the hard way that they do not have the authority to give orders to other Trustees, and now their informal peer authority is in shambles.

Keith Eckel, Keith Masser, and Richard Dandrea (another Business and Industry Trustee) did not, apparently, learn anything from this. As reported by the Centre Daily Times,[20] all these individuals tried to tell Anthony Lubrano, in public, that he must not contradict the Board's positions. Lubrano, again in public, effectively told them to go pound sand, and rightfully so.

Lubrano, still disagreeing, suggested the board breached its fiduciary duty to the university by accepting the consent decree from the NCAA. He went on to question who exactly the university is in reference to the university’s position, because he believes the answer is the constituents who elected him.

The Board's controlling majority, and the same one that led Penn State into a catastrophe on and subsequent to 11/9/2011, is now so desperate that it has embarrassed itself twice by trying to issue orders to individual Trustees, who rightly treated those orders with open contempt. This underscores the conclusion that the Board is so dysfunctional that external intervention is necessary.


From where I sit, and I am speaking as somebody with a background in organizational psychology, the situation at Penn State is as follows.

(1)                 The Board of Trustees panicked in response to the Sandusky indictment, and the inflammatory language in the Grand Jury presentment, by wrongfully accepting guilt for Sandusky's actions on behalf of the University.
(2)                 The BOT then lacked the collective character and integrity to accept responsibility for its mistakes, and continued to insist that it was right at the expense of Penn State.
(3)                 The BOT, as represented by two Business and Industry Trustees, affirmed the Freeh Report's findings of guilt without bothering (apparently) to read the report. Both these individuals then reaffirmed their intention to not have the Board review the report, as if there is nothing at all wrong with this.
(4)                 The NCAA relied on this affirmation of the Freeh Report's findings as an excuse to impose its highly questionable sanctions.
(5)                 When alumnus Bill Cluck challenged the Freeh Report, Business and Industry Trustee Frazier, who had affirmed the report, lost his temper to the extent that he made a gratuitous and derogatory remark that involved Mr. Cluck's skin color.
(6)                 The BOT's leaders attempted unsuccessfully to bully four Trustees into withdrawing from the lawsuit against the NCAA. This is probably because the lawsuit's success would prove that the BOT had failed utterly to perform its duties.

The well-being of the Pennsylvania State University is a non-negotiable, and non-partisan, issue. The University is an important asset to the Commonwealth in terms not only of prestige, but also technological innovation and economic growth. I encourage the Legislature to take whatever measures it deems necessary to protect the University from the mismanagement it has suffered during the past two years.

[1] Former alumni Trustee Robert L. Horst reported how, in 2002, the Business and Industry faction achieved a bylaws change to make this bloc of Trustees self-selecting as opposed to subject to election by the state's engineering and industrial societies.
[3] reports of Freeh's workmanship with regard to Mohamed bin Hammam’s lifetime ban from soccer, “It is a situation of ‘case not proven’, coupled with concern on the part of the panel that the FIFA investigation was not complete or comprehensive enough to fill the gaps in the record.” (emphasis is mine)
[5] I refer to the inflammatory, and false, statement in the Grand Jury presentment that says Mike McQueary saw Jerry Sandusky subjecting a boy to anal intercourse. McQueary testified under oath that he had seen no such thing, and made inferences from some slapping noises as well as a brief glimpse in a mirror. In other words, the BOT assumed that McQueary told Coach Paterno that he had seen the former, while McQueary almost certainly told Paterno (along with his father, and Dr. Dranov) the latter.
[6]  "No apologies: Penn State trustees say they 'met their responsibilities' in wake of Jerry Sandusky scandal"
[8] "The board’s second chance to inquire about the situation came at its May 2011 meeting, when members heard a report from Spanier and Baldwin about the investigation."
[9] Note also that Louis Freeh said, "The evidence shows that Mr. Paterno was made aware of the 1998 investigation of Sandusky, followed it closely; but failed to take any action, even though Sandusky had been a key member of his coaching staff for about 30 years, and had a office just steps away from Mr. Paterno." If this is true, and there are questions as to whether it is, then Paterno would also have known that the investigation exonerated Sandusky. This alone is a good indicator of the overall quality of Freeh's workmanship.

[16] Penn State trustee Frazier bashes critics, dismisses Paterno report in spat with candidate

[18] Penn State board leaders say trustee participation in Paterno lawsuit against NCAA constitutes a ‘conflict of interest’
[19] None of this statement is to be construed as an accusation that anybody has what Federal or State laws define as a conflict of interest. The point is that Penn State's vindication in the lawsuit would embarrass the Trustees in question.


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